Not an Award or a Penalty, But it’s Something.
08.30.13
Certainly we’ve quickly jumped on the proposed NFL litigation settlement and tried to analyze it without much of the hopefully forthcoming detail. One thing though does seem apparent.
The former players and their families who are suffering the most will finally get an opportunity to receive money.
And in the end, that’s the most important thing. It would be fascinating to see some of the legal battle played out, but that’s not why lawyers battle. Unlike football, they don’t play to win the game. They compromise. As one attorney once put it, a typical lawsuit ends as a lose-lose proposition. Never a win-win. Considering the circumstances and the importance of the issues in the concussion litigation, that’s what we have. Seriously ill, suffering people with brain damage trying to get assistance from their former employer based on the job they used to perform.
Perhaps Lisa McHale, widow of former Tampa Bay Buccaneer Tom McHale sums it up best in a piece by Nathan Fenno in the Washington Times:
Each Saturday and Sunday used to mean football to McHale. She loved the game. Supported her husband. Dreamed of watching her sons play in college.
“I wish that I could enjoy that the way I used to. I wish none of this were true, so I could have that all back.”
As proposed, it will provide funds for former players who are suffering from severe cognitive impairment – ALS Parkinson’s and dementia. This was the goal of the lawsuit – to provide help for the injured.
And it may provide these funds sooner with fewer hurdles to clear than players have experienced in the past with the NFL. To qualify for payment, the player must present sufficient “medical evidence of severe cognitive impairment, dementia, Alzheimer’s, ALS.” The NFL’s disability plans have been criticized for presenting multiple layers of qualifying parameters and approvals and unfairly rejecting former players’ injury claims. Some players have sued and some have just given up trying to collect benefits.
The proposed settlement is not the end of the issue. The litigation has attracted an enormous amount of attention and scrutiny on the NFL, the team owners and their treatment of current and former employees. No industry in the world has the current focus and public debate about employee health like NFL football.
Of course there are shortcomings to the settlement, as there are to every single settlement in a lawsuit:
1. The proposed settlement won’t provide cash payouts to former players not currently suffering from severe cognitive issues.
2. Doesn’t punish the NFL for 20 years of alleged denial, misdirection and obfuscation of scientific information.
3. Stops the legal process of discovery and subpoenas that may have been served on NFL committee members, university researchers, non-profit groups to produce emails and other communication between them and the NFL regarding funded research.
What remains to be understood . . .
It’s unclear from the information provided by the mediator if the settlement covers any diagnosis of C.T.E. in former football players. The illness can only be diagnosed in the brains of deceased players. The NFL has certainly used plenty of resources, namely their most recent concussion point man, Dr. Kevin Guskiewicz in order to minimize the accomplishments of Dr. Bennet Omalu and the discovery of C.T.E. It would be a refreshing turnaround to now see the NFL make money available to families of deceased players who have been diagnosed with the illness. And the business of diagnosing C.T.E. in the brains of deceased players could take on a whole new importance.
An interesting analysis of the settlement appears in the form of a comment on DavePear.com from former 1980’s Bengal and Buccaneer, Glenn Bujnoch. Although Bujnoch recognizes that he may not receive any compensation unless he develops severe cognitive impairment, he does understand the imporatnce of the settlement:
“So when I get to the point where I don’t even know who I am anymore, I will get compensation . . . I do believe and hope that player’s families who have suffered will get compensation. That’s the most important thing about this.”
Correct, the proposed settlement doesn’t do a lot of things, but it probably does the most important thing.
So, in the big picture the settlement as proposed does what the lawsuit set out to accomplish. It makes money available to players with the most severe brain injuries. The settlement does not investigate the NFL, nor does it take into account the amount of profits of the NFL owners, or how much money the lawyers are making. Discussing the issues surrounding the lawsuit have been illuminating and kept the issue in front of the public, but never was intended as the main show.
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